The second annual tailings workshop / Conference
Dates: 28/29/30 July 2025
Venue: SAHRC and Holiday Inn Johannesburg Sunnyside Park, Princess of Wales Terrace Cnr Carse O Gowrie, Sunnyside Dr, &, Johannesburg, 204
Hassen Lorgat
This year’s gathering is obliged to focus on two initiatives, which sadly are not inspired by us but by the government. The informed debates, discussions, and the aspirations of hope for a better life for all, particularly those impacted by mining and extractivism demand we respond. The forms of these responses will be multifold but we will ensure it is also in the restrictive formats imposed by the top-down traditions and ways of working of particularly government and corporations.
The two documents that come from the government are not easy to read for many particularly those currently impacted upon by mining and extractivism. One wonders what happened to the demand for plain English or the presentation of these documents in the tongues that ordinary folk may understand without the need for a lawyer. The two documents are a) the proposed amendments to the MPRDA and b) the policy paper of the government on critical raw materials. We intend to convene mini discussion forums to dig into these documents before our gathering.
The MPRDA – background
It is well understood that South Africa is like a big mining town, and that this Minerals Energy Complex (MEC) has been the engine of growth from imperial times, to apartheid and now in the 30 year old South Africa. But even the bosses have to admit that this wealth has not functioned equitably for all. The mining sector has grown and contributed to the emergence of racism tied to low wages for black workers and the denial of for decades basic trade union rights for black workers until May 1st, 1979, South Africa’s Commission of Enquiry on Labour Legislation —better known as the Wiehahn Commission came into being. Since 1994, when apartheid controls of black people was eased, the growth of mining communities expanded, but black communities have from time immemorial faced displacement by force (colonialism, apartheid) to the now more sophisticated forms of resettlements under law.
These are often negotiated by powerful groups against, generally speaking weaker landowners and black communities. Their “relocation” is done by law but it is unjust as the compensations are negligible and they often continue without real respect for rights to negotiate. The asymmetries of power between corporations, venture capitalists and a largely absent or colluding state (with the corporations) have rendered communities losers as costs are externalised onto them. Land rights as well as environmental rights are often compromised and lost as the impacts of mine waste, tailings and pollution replace the promise of a better life.
Genuine representation of marginalised communities (mining affected communities), with real rights to negotiate over their land and resources empowered with rights to have prior and informed consent – including the right to say NO to ideologically driven demands for growth above all is still lacking.
These days we sit with over 6000 derelict and ownerless and derelict mines but these problems have their roots in the epochs before: colonial and apartheid rule. These are now called legacy issues.Under apartheid, Black people enduring life, with democratic ,equal rights and redress, the law – could do little to overcome the marginalizations. They had to organise politically to overcome the system as well as what Marcos A. Orellana, called environmental racism. Orellana was the UN Special Rapporteur on Toxics and Human Rights defined as racist. He had just accomplished a visit to South Africa, 31 July – 11 August 2023. His report argued that:
“South Africa faces the crude legacy of pre-1994 environmental racism. This abhorrent practice entailed the intentional siting of landfills and polluting industries along racial lines and in low-income and migrant communities. The challenges to overcoming the legacy of environmental racism are enormous, and they are compounded by structural inequality, widespread poverty, unemployment, corruption, a severe energy crisis and new environmental threats such as the climate emergency¨.
Importantly, he recognised that structural inequalities in the context of climate change would have to be addressed. Orellana viewed legacies not as a static event but a living phenomenon that is reproduced – by action or inaction – into something else, but does not amount to rehabilitation and restitution. He continued thus:
“Today, despite the efforts by the Government in setting up institutions and laws to address this legacy of environmental racism, pervasive air, water and chemical pollution still imposes a heavy toll, especially on disadvantaged communities. Overcoming it will require significant additional efforts, including structural, legislative, economic, and environmental changes.”
In the context of mass unemployment and the marginalisation we speak of above, South Africa could be sitting on a time-bomb where unrests spurred on by lack of real quality lives and livelihoods, or to put it simply, no jobs, hunger, marginalisation and anger are the feelings that dominate many a township.
The systemic unemployment is officially at over 32 percent of the people and whilst many are on social and other grants, these are not sufficient to stem the anger that is rooted in our past and our present failures.
These concerns are not the impulse of these amendments. On 20 May 2025, the Minister of Mineral and Petroleum Resources in their invitation to all of us to participate wrote that the closing date is 13 August 2025 and it must be submitted to Representations@dmre.gov.za. The published draft Mineral Resources Development Bill for comment was shared and on 9 June 2025, the Minister gazetted corrections to the draft bill: see Notice
According to the cabinet statement it was clear that “the Bill aims to enhance investor confidence by removing red tape and providing regulatory certainty to attract and retain investment. The Bill aims to address key regulatory gaps, streamline licensing processes, ensure equitable distribution of mining benefits, and promote local processing and manufacturing industries by ensuring that more raw minerals are transformed into higher-value products within South Africa.” In addition, the Bill introduces a licensing regime for artisanal and small-scale mining operations, (thereby enhancing economic growth.) Furthermore, the amendments seek to strengthen regulatory measures to combat unlawful activities while ensuring clear prohibitions and enforcement mechanisms in relation to illegal mining.
These amendments remain captured by the ideology of trickle down economics, which holds that the benefits at the top such as tax cuts, deregulation, or other economic advantages are given to businesses and wealthy individuals at the top. This, they hope will eventually “trickle down” to the rest of society in the form of job creation, higher wages, and broader economic growth. This has not worked over the last 30 years and why do they think it will deliver now?
Democratic infrastructure for the realisation of rights
An overriding concern a prerequisite for our recommendations is the capacity of the Department to provide the infrastructure for people affirming governance of the sector.
How will it overcome the incompetence and interdepartmental competition that undermines communities. The One Environmental System (OES) was introduced to streamline environmental authorizations, including mining, under a single framework. Today it remains weak in enforcement and monitoring whilst communities remain marginalised. Community participation is seen as a luxury or a waste of time thus undermining the Bill of Rights (e.g., Section 24’s environmental rights).
Is there corporate capture of the systems of Water use licences? How are licences issued and to whom and on whose consent?
Points to Ponder
Communities and activists may want to focus their reading around the following concerns:
- The principles of the mining act have not been changed and must be read. We must scrutinize these and keep them in mind throughout the document. Take one example:What did or does this mean for the poor and marginalised communities we work with: South Africa’s mineral resources are a common heritage that belong to the nation and that the State is the custodian thereof;
- How are community rights – persons impacted and affected – realised in the document. How are communities, the impacted and affected people,particular women engaged with? Do they only have the powers to be consulted? What about negotiations? What role does the Minister play in ensuring that community rights are realised?
- How is the wealth from mining codified for communities (those directly impacted) and wider society? Is it sufficient given the externalisation of costs suffered by workers and the poor, other life forms, and the wider ecology?
- What rights are given to artisanal mining?
- How is mine waste, tailings and other impacts regulated in the act?
- How are mine closures governed in these amendments? How is rehabilitation of the land and restitution of people and other life forms addressed? How are the other departments responsible for mine closures working around the preservation of water in mine closures drafted?
- How will communities be able to complain or how will their grievances be addressed by whom and of what quality will it be?
- How do communities feel about the demand for an independent ombud to adjudicate mine related complaints.(this could be chaired by the SAHRC and Public Protector, with other agencies like the Land Court etc coming in when needed?
There may be other points but what is needed is for community based activists to read and write and come prepared to discuss so that these views can be coordinated and collated at tour national workshop / conference on 28 /29 /30 July 2025
We have also shared it here for communities to read and comment:
Critical Raw Materials
Closely tied to this, the workshop/conference must discuss the SA Government’s policy on critical raw materials. It is called Critical Minerals and Metals Strategy – South Africa and the document can be found here:
It has not been discussed with us but sits there having the power of law, and we believe by engaging with it, we will put our concerns forward.
The document assumes that this transition though amongst other things will propel us into prosperity. Is this not another form of mining? Why must we believe that it will work when actually existing mining has not worked?
The summary said that it will unleash “advanced processing capabilities will position the country as a global player in critical mineral value chains, particularly in emerging sectors such as renewable energy technologies, electric vehicles, green hydrogen and advanced manufacturing….”
The strategy document is not long and we recommend you read it all. Our concerns remain around how mine waste and tailings will be secured, managed and secondly whether we will all be better off by this new rush for critical raw materials.
On tailings they make the case for re-mining of tailings through the circular economy thus:
Recycling in South Africa poses many challenges, and the process is not economically viable. However, as a mining country, reclamation of tailings and discards, and extraction of their value across the many commodities offers great opportunities for taking full advantage of the circularity of mining. There is a well-established secondary market for some of the recyclable minerals such as gold and PGMs. Recycling is growing due, among others, to vulnerabilities in critical minerals supply chains. Similarly, the recycling of battery minerals is also growing. While South Africa’s mineral value chains are not focused on recycling, the country will benefit from establishing recycling for the sustainability of its mineral endowments. For example, investing in lithium recycling technologies and facilities could complement the growth of lithium mining in South Africa and help create a sustainable, circular economy within the lithium value chain.
In South Africa, coal fly ash (CFA) has potential for economically recoverable grades of rare earth elements (REEs) and these can produce a new, non traditional source of specific REEs. REEs are essential for permanent magnets used in wind turbines and electric vehicles motors. Coal is a significant component of South Africa’s energy mix, therefore, investments into clean coal technologies and carbon capture technologies will reduce the impact on South Africa’s carbon footprint. South Africa has been investing in gasification technology to reduce its dependence on coal, increasing its consumption of natural gas and increasing renewables for a diverse energy mix.“\
This sounds fascinating but recycling of mine dumps and waste is not new and we believe it is followed by hype for new markets. The reality is that communities that have suffered the toxins, hazards of mine dust and deaths due to unsecured tailings are once again losing out on job opportunities, according to some communities.
We must also read this with the MPRDA proposed amendments which supposedly set out to fix, belatedly, the gap in mining law following the 2007 High Court case De Beers Consolidated Mines (Pty) Ltd v Ataqua Mining (Pty) Ltd and Others, which had significant implications for the regulation of tailings dams in South Africa—particularly in the Jagersfontein disaster (2022) where a tailings dam collapse caused severe environmental and human damage. To recall, the High Court ruled that tailings (mine waste dumps) are “movable property” and not subject to regulation under the Mineral and Petroleum Resources Development Act (MPRDA) of 2002. This effectively cut off the minerals and mining department from any authority for tailings dams, once mining operations had ceased. Fundamentally the court considered or classified tailings as private property, meaning they could be sold or reprocessed without oversight by the DMRE. The Jagersfontein (2002) tailings disaster brought all this out in full play.
We will present a more detailed guide closer to the time for comments and feedback before the workshop / conference.
Have a fabulous read, alone and with others
Hassen Lorgat
CSOs 4 Tailings Justice 